Searches OneSearch, which includes Georgetown and Consortium holdings, many of the Georgetown databases, and a variety of other resources. It includes books, journal and newspaper articles, encyclopedias, images and media, and primary sources.

You are here

Search

Searches OneSearch, which includes Georgetown and Consortium holdings, many of the Georgetown databases, and a variety of other resources. It includes books, journal and newspaper articles, encyclopedias, images and media, and primary sources.

Information for:

2

Civil Unity and Religious Integrity

The Articles of Peace

THE UNITY ASSERTED IN THE AMERICAN DEVICE, "E pluribus unum"
(as I have adapted its meaning) is a unity of a limited order. It does
not go beyond the exigencies of civil conversation, taken in the sense
already defined. This civil unity therefore must not hinder the various
religious communities in American society in the maintenance of their
own distinct identities. Similarly, the public consensus, on which civil
unity is ultimately based, must permit to the differing communities
the full integrity of their own religious convictions. The one civil
society contains within its own unity the communities that are divided
among themselves; but it does not seek to reduce to its own unity the
differences that divide them. In a word, the pluralism remains as real
as the unity. Neither may undertake to destroy the other. Each subsists
in its own order. And the two orders, the religious and the civil, remain
distinct, however much they are, and need to be, related. All this,
I take it, is integral to the meaning attached in America to the doctrine
of religious freedom and to its instrumental companion-doctrine called
(not felicitously) separation of church and state. I use the word "doctrine"
as lawyers or political philosophers, not theologians, use it.

We come therefore to the second question. It concerns the American solution
to the problem put by the plurality of conflicting reli-

[p. 46]

gions within the one body politic. In its legal form (there are other
forms, as I shall later say) the solution is deposited in the First
Amendment to the Federal Constitution: "Congress shall make no
law respecting an establishment of religion or prohibiting the free
exercise thereof. . . ." What then is the Catholic view of this constitutional
proviso?

A MATTER OF PREJUDICE

In 1790 Edmund Burke published his Reflections on the Revolution in
France. When he comes to his defense of English institutions ("an
established Church, an established monarchy, an established aristocracy, and an
established democracy"), he says: "First I beg leave to speak of our Church
Establishment, which is the first of our prejudices—not a prejudice destitute
of reason, but involving in it profound and extensive wisdom. I speak of it
first. It is first, and last, and midst in our minds." In that same year the
people of the states newly formed into the American Federal Republic were
debating the ten amendments to the Constitution, submitted to them for
ratification. The ratification was complete in 1791, and in that year the legal
rule against any establishment of religion was on its way to becoming, where it
had not already become, the first of our prejudices. There is a contrast here,
a clash of prejudices, which still endures. The clash ought to be mentioned at
the outset of our present question, primarily because it should teach one the
dangers of doctrinaire judgments. Such judgments are always in peril of
falsity; they are particularly so in the delicate matter of the legal
regulation of religion in society. We have a special prejudice in this matter,
which is specifically American, because its origins are in our particular
context and its validity has been demonstrated by the unique course of American
history.

The subject might almost be left right here, if it could be generally
admitted that the First Amendment expresses simply an American

[p. 47]

prejudice, in Burke's sense of the word. A prejudice is not necessarily
an error; to be prejudiced is not necessarily to be unreasonable. Certain
pre-judgments are wholesome. Normally, they are concrete judgments of
value, not abstract judgments of truth. They are not destitute of reason,
but their chief corroboration is from experience. They are part of the
legacy of wisdom from the past; they express an ancestral consensus.
Hence they supply in the present, as Russell Kirk puts it, "the
half-intuitive knowledge which enables men to meet the problems of life
without logic-chopping." The American Catholic is entirely prepared
to accept our constitutional concept of freedom of religion and the
policy of no establishment as the first of our prejudices. He is also
prepared to admit that other prejudices may obtain elsewhere—in England,
in Sweden, in Spain. Their validity in their own context and against
the background of the history that generated them does not disturb him
in his conviction that his own prejudice, within his own context and
against the background of his own history, has its own validity.

American Catholics would even go as far as to say of the provisions of
the First Amendment what Burke, in his Reflections, said of the
English Church Establishment, that they consider it as "essential
to their state; not as a thing heterogeneous and separable, something
added from accommodation, what they may either keep up or lay aside,
according to their temporary ideas of convenience. They consider it
as the foundation of their whole Constitution, with which, and with
every part of which, it holds an indissoluble union." The prejudice
formulated in the First Amendment is but the most striking aspect of
the more fundamental prejudice that was the living root of our constitutional
system—the prejudice in favor of the method of freedom in society and
therefore the prejudice in favor of a government of limited powers,
whose limitations are determined by the consent of the people. The American
people exempted from their grant of power to government any power to
establish religion or to prohibit the free exercise thereof. The Catholic
community, in

[p. 48]

common with the rest of the American people, has historically consented
to this political and legal solution to the problem created by the plurality
of religious beliefs in American society. They agree that the First
Amendment is by no means destitute of reason; that it involves profound
and extensive wisdom; that its wisdom has been amply substantiated by
history. Consequently, they share the general prejudice which it states;
often enough both in action and in utterances they have made this fact
plain. And that should be the end of the matter.

THEOLOGIES OF THE FIRST AMENDMENT

But, as it happens, one is not permitted thus simply to end the matter.
I leave aside the practical issues that have arisen concerning the application
of the First Amendment. The question here is one of theory, the theory of the
First Amendment in itself and in its relation to Catholic theories of freedom
of religion and the church-state relation. It is customary to put to Catholics
what is supposed to be an embarrassing question: Do you really believe in the
first two provisions of the First Amendment? The question calls to mind one of
the more famous among the multitudinous queries put by Boswell to Dr. Johnson,
"whether it is necessary to believe all the Thirty-Nine Articles." And the
Doctor's answer has an applicable point: "Why, sir, that is a question which
has been much agitated. Some have held it necessary that all be believed.
Others have considered them to be only articles of peace, that is to say, you
are not to preach against them."

An analogous difference of interpretation seems to exist with regard to
the first two articles of the First Amendment.

On the one hand, there are those who read into them certain ultimate beliefs,
certain specifically sectarian tenets with regard to the nature of religion,
religious truth, the church, faith, conscience, divine revelation, human
freedom, etc. In this view these articles are

[p 49]

invested with a genuine sanctity that derives from their supposed
religious content. They are dogmas, norms of orthodoxy, to which one
must conform on pain of some manner of excommunication. They are true
articles of faith. Hence it is necessary to believe them, to give them
a religiously motivated assent.

On the other hand, there are those who see in these articles only a
law, not a dogma. These constitutional clauses have no religious content.
They answer none of the eternal human questions with regard to the nature
of truth and freedom or the manner in which the spiritual order of man's
life is to be organized or not organized. Therefore they are not invested
with the sanctity that attaches to dogma, but only with the rationality
that attaches to law. Rationality is the highest value of law. In further
consequence, it is not necessary to give them a religious assent but
only a rational civil obedience. In a word, they are not articles of
faith but articles of peace, that is to say, you may not act against
them, because they are law and good law.

Those who dogmatize about these articles do not usually do so with
all the clarity that dogmas require. Nor are they in agreement with
one another. The main difference is between those who see in these articles
certain Protestant religious tenets and those who see in them certain
ultimate suppositions of secular liberalism. The differences between
those two groups tend to disappear in a third group, the secularizing
Protestants, so called, who effect an identification of their Protestantism
with American secular culture, consider the church to be true in proportion
as its organization is commanded by the norms of secular democratic
society, and bring about a coincidence of religious and secular-liberal
concepts of freedom.

All three of these currents of thought have lengthy historical roots;
the first, predominantly in the modified Puritan Protestantism of the
"free church" variety; the second, in early American deism
and rationalism; the third, in less specific sources, but importantly
in the type of Protestantism, peculiar to America, whose character was

[p. 50]

specified during the Great Awakening, when the American climate did
as much to influence Protestantism as Protestantism did to influence
the American climate. This more radical secularizing Protestantism has
in common with the later Puritan tradition the notion that American
democratic institutions are the necessary secular reflection of Protestant
anti-authoritarian religious individualism and its concept of the "gathered"
church. Protestantism and Americanism, it is held, are indissolubly
wedded as respectively the religious and the secular aspects of the
one manner of belief, the one way of life.

This is not the place to argue the question, whether and how far any
of these views can be sustained as an historical thesis. What matters
here is a different question, whether any of them can serve as a rule
of interpretation of the First Amendment. What is in question is the
meaning and the content of the first of our American prejudices, not
its genesis. Do these clauses assert or imply that the nature of the
church is such that it inherently demands the most absolute separation
from the state? Do they assert or imply that the institutional church
is simply a voluntary association of like-minded men; that its origins
are only in the will of men to associate freely for purposes of religion
and worship; that all churches, since their several origins are in equally
valid religious inspirations, stand on a footing of equality in the
face of the divine and evangelical law; that all ought by the same token
to stand on an equal footing in the face of civil law? In a word, does
separation of church and state in the American sense assert or imply
a particular sectarian concept of the church?

Further, does the free-exercise clause assert or imply that the individual
conscience is the ultimate norm of religious belief in such wise that
an external religious authority is inimical to Christian freedom? Does
it hold that religion is a purely private matter in such wise that an
ecclesiastical religion is inherently a corruption of the Christian
Gospel? Does it maintain that true religion is religion-in-general,
and that the various sects in their dividedness are as repug-

[p. 51]

nant religiously as they are politically dangerous? Does it pronounce
religious truth to be simply a matter of personal experience, and religious
faith to be simply a matter of subjective impulse, not related to any
objective order of truth or to any structured economy of salvation whose
consistence (sic.) is not dependent on the human will?

The questions could be multiplied, but they all reduce themselves to
two. Is the no-establishment clause a piece of ecclesiology, and is
the free-exercise clause a piece of religious philosophy? The general
Protestant tendency, visible at its extreme in the free-church tradition,
especially among the Baptists, is to answer affirmatively to these questions.
Freedom of religion and separation of church and state are to be, in
the customary phrase, "rooted in religion itself." Their substance
is to be conceived in terms of sectarian Protestant doctrine. They are
therefore articles of faith; not to give them a religious assent is
to fall into heterodoxy.

The secularist dissents from the Protestant theological and philosophical
exegesis of the first of our prejudices. But it is to him likewise an
article of faith (he might prefer to discard the word, "faith,"
and speak rather of ultimate presuppositions). Within this group also
there are differences of opinion. Perhaps the most sharpened view is
taken by those who in their pursuit of truth reject not only the traditional
methods of Christian illumination, both Protestant and Catholic, but
also the reflective methods of metaphysical inquiry.

These men commit themselves singly to the method of scientific empiricism.
There is therefore no eternal order of truth and justice; there are
no universal verities that require man's assent, no universal moral
law that commands his obedience. Such an order of universals is not
empirically demonstrable. Truth therefore is to be understood in a positivistic
sense; its criteria are either those of science or those of practical
life, i.e., the success of an opinion in getting itself accepted in
the market place. With this view of truth there goes a corresponding
view of freedom. The essence of freedom is "non-

[p. 52]

committalism." I take the word from Gordon Keith Chalmers. He
calls it a "sin," but in the school of thought in question
it is the highest virtue. To be uncommitted is to be in the state of
grace; for a prohibition of commitment is inherent in the very notion
of freedom. The mind or will that is committed, absolutely and finally,
is by definition not free. It has fallen from grace by violating its
own free nature. In the intellectual enterprise the search for truth,
not truth itself or its possession, is the highest value. In the order
of morals the norm for man is never reached by knowledge. It is only
approximated by inspired guesses or by tentative practical rules that
are the precipitate of experience, substantiated only by their utility.

This school of thought, which is of relatively recent growth in America,
thrusts into the First Amendment its own ultimate views of truth, freedom,
and religion. Religion itself is not a value, except insofar as its
ambiguous reassurances may have the emotional effect of conveying reassurance.
Roman Catholicism is a disvalue. Nevertheless, religious freedom, as
a form of freedom, is a value. It has at least the negative value of
an added emancipation, another sheer release. It may also have the positive
value of another blow struck at the principle of authority in any of
its forms; for in this school authority is regarded as absolutely antinomous
to freedom.

Furthermore, this school usually reads into the First Amendment a more
or less articulated political theory. Civil society is the highest societal
form of human life; even the values that are called spiritual and moral
are values by reason of their reference to society. Civil law is the
highest form of law and it is not subject to judgment by prior ethical
canons. Civil rights are the highest form of rights; for the dignity
of the person, which grounds these rights, is only his civil dignity.
The state is purely the instrument of the popular will, than which there
is no higher sovereignty. Government is to the citizen what the cab-driver
is to the passenger (to use Yves Simon's descriptive metaphor). And
since the rule of the majority is the method whereby the popular will
expresses itself, it is the highest governing

[p. 53]

principle of statecraft, from which there is no appeal. Finally, the
ultimate value within society and state does not consist in any substantive
ends that these societal forms may pursue; rather it consists in the
process of their pursuit. That is to say, the ultimate value resides
in the forms of the democratic process itself, because these forms embody
the most ultimate of all values, freedom. There are those who pursue
this theory to paradoxical lengths—perhaps more exactly, to the lengths
of logical absurdity—by maintaining that if the forms of democracy perish
through the use of them by men intent on their destruction, well then,
so be it.

Given this political theory, the churches are inevitably englobed within
the state, as private associations organized for particular purposes.
They possess their title to existence from positive law. Their right
to freedom is a civil right, and it is respected as long as it is not
understood to include any claim to independently sovereign authority.
Such a claim must be disallowed on grounds of the final and indivisible
sovereignty of the democratic process over all the associational aspects
of human life. The notion that any church should acquire status in public
life as a society in its own right is per se absurd; for there is only
one society, civil society, which may so exist. In this view, separation
of church and state, as ultimately implying a subordination of church
to state, follows from the very nature of the state and its law; just
as religious freedom follows from the very nature of freedom and of
truth.

The foregoing is a sort of anatomical description of two interpretations
of the religion clauses of the First Amendment. The description is made
anatomical in order to point the issue. If these clauses are made articles
of faith in either of the described senses, there are immediately in
this country some 35,000,000 dissenters, the Catholic community. Not
being either a Protestant or a secularist, the Catholic rejects the
religious position of Protestants with regard to the nature of the church,
the meaning of faith, the absolute primacy of conscience, etc.; just
as he rejects secularist views with regard to

[p. 54]

the nature of truth, freedom, and civil society as man's last end.
He rejects these positions as demonstrably erroneous in themselves.
What is more to the point here, he rejects the notion that any of these
sectarian theses enter into the content or implications of the First
Amendment in such wise as to demand the assent of all American citizens.
If this were the case the very article that bars any establishment of
religion would somehow establish one. (Given the controversy between
Protestant and secularist, there would be the added difficulty that
one could not know just what religion had been established.)

If it be true that the First Amendment is to be given a theological
interpretation and that therefore it must be "believed," made
an object of religious faith, it would follow that a religious test
has been thrust into the Constitution. The Federal Republic has suddenly
become a voluntary fellowship of believers either in some sort of freechurch
Protestantism or in the tenets of a naturalistic humanism. The notion
is preposterous. The United States is a good place to live in; many
have found it even a sort of secular sanctuary. But it is not a church,
whether high, low, or broad. It is simply a civil community, whose unity
is purely political, consisting in "agreement on the good of man
at the level of performance without the necessity of agreement on ultimates"
(to adopt a phrase from the 1945 Harvard Report on General Education
in a Free Society). As regards important points of ultimate religious
belief, the United States is pluralist. Any attempt at reducing this
pluralism by law, through a process of reading certain sectarian tenets
into the fundamental law of the land, is prima facie illegitimate and
absurd.

Theologians of the First Amendment, whether Protestant or secularist,
are accustomed to appeal to history. They stress the importance of ideological
factors in the genesis of the American concept of freedom of religion
and separation of church and state. However, these essays in theological
history are never convincing. In the end it is always Roger Williams
to whom appeal is made. Admittedly, he was

[p. 55]

the only man in pre-Federal America who had a consciously articulated
theory. The difficulty is that the Williams who is appealed to is a
Williams who never was. Prof. Perry Miller's book, Roger Williams,
(Indianapolis: Bobbs-Merrill, 1953.) is useful in this respect. Its
citations and analyses verify the author's statement: "I have long
been persuaded that accounts written in the last century create a figure
admirable by the canons of modern secular liberalism, but only distantly
related to the actual Williams." The unique genius of Master Roger
has been badly obscured by historians of a long-dominant school, now
in incipient decline, who tended to see early American history through
the climate of opinion generated by the Enlightenment. Their mistake
lay in supposing that the haze of this climate actually hung over the
early American landscape, whereas in fact it only descended, long after,
upon the American universities within which the historians did their
writing.

Professor Miller's book enhances the moral grandeur and human attractiveness
of Roger Williams. It further makes clear, largely by letting him speak
for himself, that he was no child of the Enlightenment born before his
time. He was a seventeenth-century Calvinist who somehow had got hold
of certain remarkably un-Calvinist ideas on the nature of the political
order in its distinction from the church. He then exaggerated this distinction
in consequence of his special concept of the discontinuity of the Old
and New Testaments and of the utter transcendence of the church in the
New Testament, which forbids it to maintain any contacts with the temporal
order. In any event, Williams' premises and purposes were not those
of the secular liberal democrat, any more than his rigidly orthodox
Calvinist theology is that of his Baptist progeny. (One can imagine
his horror were he to hear an outstanding Baptist spokesman utter with
prideful satisfaction the phrase, "the Americanization of the churches.")

However, this is not the place to explore Williams' ideas, ecclesiastical
or political. The point is that his ideas, whatever their worth, had
no genetic influence on the First Amendment. Professor Miller

[p. 56]

makes the point: "Hence, although Williams is celebrated as the
prophet of religious freedom, he actually exerted little or no influence
on institutional developments in America; only after the conception
of liberty for all denominations had triumphed on wholly other grounds
did Americans look back on Williams and invest him with his ill-fitting
halo." Williams therefore is to be ruled out as the original theologian
of the First Amendment. In fact, one must rule out the whole idea that
any theologians stood at the origin of this piece of legislation. The
truth of history happens to be more prosaic than the fancies of the
secular liberals. In seeking an understanding of the first of our prejudices
we have to abandon the poetry of those who would make a religion out
of freedom of religion and a dogma out of separation of church and state.
We have to talk prose, the prose of the Constitution itself, which is
an ordinary legal prose having nothing to do with doctrinaire theories.

ARTICLES OF PEACE

From the standpoint both of history and of contemporary social reality
the only tenable position is that the first two articles of the First
Amendment are not articles of faith but articles of peace. Like the
rest of the Constitution these provisions are the work of lawyers, not
of theologians or even of political theorists. They are not true dogma
but only good law. That is praise enough. This, I take it, is the Catholic
view. But in thus qualifying it I am not marking it out as just another
"sectarian" view. It is in fact the only view that a citizen
with both historical sense and common sense can take.

That curiously clairvoyant statesman, John C. Calhoun, once observed
that "this admirable federal constitution of ours is superior to
the wisdom of any or all the men by whose agency it was made. The force
of circumstances and not foresight or wisdom induced them to adopt many
of its wisest provisions." The observation is particularly pertinent
to the religion clauses of the First Amendment.

[p. 57]

If history makes one thing clear it is that these clauses were the
twin children of social necessity, the necessity of creating a social
environment, protected by law, in which men of differing religious faiths
might live together in peace. In his stimulating book, The Genius
of American Politics, (Chicago: University of Chicago Press, 1953)
Prof. Daniel Boorstin says: "The impression which the American
has as he looks about him is one of the inevitability of the particular
institutions under which he lives." This mark of inevitability
is an index of goodness. And it is perhaps nowhere more strikingly manifest
than in the institutions which govern the relation of government to
religion. These institutions seem to have been preformed in the peculiar
conditions of American society. It did indeed take some little time
before the special American solution to the problem of religious pluralism
worked itself out; but it is almost inconceivable that it should not
have worked itself out as it did. One suspects that this would have
been true even if there had been no Williamses and Penns, no Calverts
and Madisons and Jeffersons. The theories of these men, whatever their
merits, would probably have made only literature not history, had it
not been for the special social context into which they were projected.
Similarly, the theories of these men, whatever their defects, actually
made history because they exerted their pressure, such as it was, in
the direction in which historical factors were already moving the new
American society.

To say this is not of course to embrace a theory of historical or social
determinism. It is only to say that the artisans of the American Republic
and its Constitution were not radical theorists intent on constructing
a society in accord with the a priori demands of a doctrinaire blueprint,
under disregard for what was actually "given" in history.
Fortunately they were, as I said, for the most part lawyers. And they
had a strong sense of that primary criterion of good law which is its
necessity or utility for the preservation of the public peace, under
a given set of conditions. All law looks to the common

[p. 58]

good, which is normative for all law. And social peace, assured by
equal justice in dealing with possibly conflicting groups, is the highest
integrating element of the common good. This legal criterion is the
first and most solid ground on which the validity of the First Amendment
rests.

Every historian who has catalogued the historical factors which made
for religious liberty and separation of church and state in America
would doubtless agree that these institutions came into being under
the pressure of their necessity for the public peace. Four leading factors,
contributory to this necessity, are usually listed.

First, there was the great mass of the unchurched. They were either
people cut off from religion by the conditions of frontier life; or
people careless of religion in consequence of preoccupation with the
material concerns of this world; or people concerned with religion as
indispensable to morality and therefore to ordered civil life, but unconcerned
with, or even hostile toward, what is called organized religion. The
fact may be embarrassing to the highminded believer, but it is nevertheless
a fact that the development of religious freedom in society bears a
distinct relationship to the growth of unbelief and indifference. Our
historical good fortune lay in the particular kind of unbelief that
American society has known. It was not Continental laicism, superficially
anticlerical, fundamentally antireligious, militant in its spirit, active
in its purpose to destroy what it regarded as hateful. Unbelief in America
has been rather easy-going, the product more of a naive materialism
than of any conscious conviction. The American unbeliever is usually
content to say, "I am not personally a religious man," and
let the subject drop there. American unbelief is usually respectful
of belief, or at least respectful of the freedom to believe. And this
fact has been important in influencing the general climate in which
our institutions work.

The second factor was the multiplicity of denominations. This was Protestantism's
decisive contribution to the cause of religious freedom—decisive because
made at a time when the rapidly proliferating

[p. 59]

denominations were less disposed than they now are to live together
in peace. This fact made it necessary to seek a basis for political
unity other than the hitherto prevailing one, agreement in religious
faith and ecclesiastical polity. Figgis' famous dictum, "Political
liberty is the residuary legatee of ecclesiastical animosities,"
is a historical half-truth. It is not the whole of the truth even in
the matter of religious liberty. But the truth in it cannot be denied.
In this sense the Cottons and the Mathers made their contribution to
American freedom of religion no less, and perhaps more, than the Williamses
and Penns. The sheer fact of dissent and sectarian antagonisms was a
particularly important motive of the Federal constitutional arrangements;
for at that time four states still retained establishments of various
kinds. One recalls John Adams' testy reluctance to hear any argument
about disestablishment in Massachusetts.

Thirdly, the economic factor was by no means unimportant. It was present
in the somewhat impenetrable thinking of the two Calverts. The merchants
of New Jersey, New York, Virginia, and the more southern colonies were
as emphatically on the side of religious freedom as on the side of commercial
profits. Persecution and discrimination were as bad for business affairs
as they were for the affairs of the soul.

A fourth factor of lesser importance was the pressure, not indeed very
great but real enough, exerted by the widening of religious freedom
in England. This growth had been fostered by the same factors that were
operating more strongly in America. Anglicanism and Nonconformism were
engaged in a struggle whose issue was already becoming clear. It was
not to be disestablishment; Burke's prejudice, widely shared, would
be too strong to permit that. But it would at least be religious freedom
(except for Catholics), conjoined with establishment. In America, where
the ground was clear for the creation of a new prejudice, the development
could go all the way.

These four factors, taken as a sociological complex, made it sufficiently
clear to all reasonable men that under American conditions

[p. 60]

any other course but freedom of religion and separation of church and
state would have been disruptive, imprudent, impractical, indeed impossible.
The demands of social necessity were overwhelming. It remains only to
insist that in regarding the religion clauses of the First Amendment
as articles of peace and in placing the case for them on the primary
grounds of their social necessity, one is not taking low ground. Such
a case does not appeal to mean-spirited expediency nor does it imply
a reluctant concession to force majeure. In the science of law and the
art of jurisprudence the appeal to social peace is an appeal to a high
moral value. Behind the will to social peace there stands a divine and
Christian imperative. This is the classic and Christian tradition.

Roger Williams himself was a powerful spokesman of it. "Sweet
peace" (the phrase he uses in The Bloudy Tenent) stands
at the center of his doctrine; and he adds in the same context that
"if it be possible, it is the express command of God that peace
be kept." In a letter of 1671 to John Cotton the younger he recalls
with satisfaction that his second great work, The Bloudy Tenent Still
More Bloudy, was received in England "with applause and thanks"
as "professing that of necessity, yea, of Christian equity, there
could be no reconciliation, pacification, or living together but by
permitting of dissenting consciences to live amongst them." There
is also, along with others, the strong statement with which he concludes
his pamphlet, The Hireling Ministry None of Christ's. As the sum of
the matter he proclaims the duty of the civil state in the current conditions
of religious division "to proclaim free and impartial liberty to
all the people of the three nations to choose and maintain what worship
and ministry their souls and consciences are persuaded of; which act,
as it will prove an act of mercy and righteousness to the enslaved nations,
so it is a binding force to engage the whole and every interest and
conscience to preserve the common freedom and peace." This is the
way whereby "civil peace and the beauty of civilty and humanity
(may] be obtained among the chief opposers and dissenters."

[p. 61]

Roger Williams was no partisan of the view that all religions ought
to be equally free because, for all anybody knows, they may all be equally
true or false. He reckons with truth and falsity in honest fashion.
Yet even in the case of a "false religion (unto which the civil
magistrate dare not adjoin) " he recommends as the first duty of
the civil magistrate "permission (for approbation he owes not what
is evil) and this according to Matthew 13:30, for public peace and quiet's
sake." The reference is to the parable of the tares.

It is interesting that this same parable is referred to by Pius XII
in his discourse to a group of Italian jurists on December 6, 1953.
This discourse is a strong affirmation of the primacy of the principle
of peace (or "union," which is the Pope's synonymous word)
when it comes to dealing with the "difficulties and tendencies"
which arise out of mankind's multiple pluralisms and dissensions. The
"fundamental theoretical principle," says the Pope (and one
should underscore the word, "theoretical"; it is not a question
of sheer pragmatism, much less of expediency in the low sense), is this:
"within the limits of the possible and the lawful, to promote everything
that facilitates union and makes it more effective; to remove everything
that disturbs it; to tolerate at times that which it is impossible to
correct but which on the other hand must not be permitted to make shipwreck
of the community from which a higher good is looked for." This
higher good, in the context of the whole discourse, is "the establishment
of peace."

From this firm footing of traditional principle the Pope proceeds to
reject the view that would "solve" the problem of religious
pluralism on the ultimate basis of this doctrinaire argument: Religious
and moral error have no rights and therefore must always be repressed
when repression of them is possible. In contradiction of this view the
Pope says, after quoting the parable of the tares: "The duty of
repressing religious and moral error cannot therefore be an ultimate
norm of action. It must be subordinated to higher and more general norms
which in some circumstances permit, and even perhaps

[p. 62]

make it appear the better course of action, that error should not be
impeded in order to promote a greater good." The Pope makes a clear
distinction between the abstract order of ethics or theology, where
it is a question of qualifying doctrines or practices as true or false,
right or wrong, and the concrete order of jurisprudence, where it is
a question of using or not using the coercive instrument of law in favor
of the true and good, against the false and wrong. In this latter order
the highest and most general norm is the public peace, the common good
in its various aspects. This is altogether a moral norm.

Roger Williams had many a quarrel with the Roman papacy; in fact, he
wanted it abolished utterly. It is therefore piquant in itself, and
also a testimony to the strength of the hold that the central Christian
tradition had upon him, to read this basic principle of Catholic teaching
in the Bloudy Tenent: "It must be remembered that it is one thing
to command, to conceal, to approve evil; and another thing to permit
and suffer evil with protestation against it or dislike of it, at least
without approbation of it. This sufferance or permission of evil is
not for its own sake but for the sake of the good, which puts a respect
of goodness upon such permission." The "good" here is
the public peace. Williams concludes the passage thus: "And therefore,
when it crosseth not an absolute rule to permit and tolerate (as in
the case of the permission of the souls and consciences of all men of
the world), it will not hinder our being holy as He is holy in all manner
of conversation." In substance Pius XII says the same thing, that
it crosseth not an absolute rule to permit within the civil community,
as he says, "the free exercise of a belief and of a religious and
moral practice which possess validity" in the 'eyes of some of
its members.

In fact, the Pope goes much further when he flatly states that "in
certain circumstances God does not give men any mandate, does not impose
any duty, and does not even communicate the right to impede or to repress
what is erroneous and false." The First Amendment is simply

[p. 63]

the legal enunciation of this papal statement. It does not say that
there is no distinction between true and false religion, good and bad
morality. But it does say that in American circumstances the conscience
of the community, aware of its moral obligations to the peace of the
community, and speaking therefore as the voice of God, does not give
government any mandate, does not impose upon it any duty, and does not
even communicate to it the right to repress religious opinions or practices,
even though they are erroneous and false.

On these grounds it is easy to see why the Catholic conscience has
always consented to the religion clauses of the Constitution. They conform
to the highest criterion for all legal rulings in this delicate matter.
The criterion is moral; therefore the law that meets it is good, because
it is for the common good. Therefore the consent given to the law is
given on grounds of moral principle. To speak of expediency here is
altogether to misunderstand the moral nature of the community and its
collective moral obligation toward its own common good. The origins
of our fundamental law are in moral principle; the obligations it imposes
are moral obligations, binding in conscience. One may not, without moral
fault, act against these articles of peace.

THE DISTINCTION OF CHURCH AND STATE

If the demands of social necessity account for the emergence in America
of religious freedom as a fact, they hardly account for certain peculiarities
of the first of our prejudices and for the depth of feeling that it
evokes. Another powerful historical force must be considered, namely,
the dominant impulse toward self-government, government by the people
in the most earnest sense of the word. Above all else the early Americans
wanted political freedom. And the force of this impulse necessarily
acted as a corrosive upon the illegitimate "unions" of church
and state which the post-Reformation

[p. 64]

era had brought forth. The establishments of the time were, by and
large, either theocratic, wherein the state was absorbed in the church,
or Erastian, wherein the church was absorbed in the state. In both cases
the result was some limitation upon freedom, either in the form of civil
disabilities imposed in the name of the established religion, or in
the form of religious disabilities imposed in the name of the civil
law of the covenanted community. The drive toward popular freedom would
with a certain inevitability sweep away such establishments. Men might
share the fear of Roger Williams, that the state would corrupt the church,
or the fear of Thomas Jefferson, that the church would corrupt the state.
In either case their thought converged to the one important conclusion,
that an end had to be put to the current confusions of the religious
and political orders. The ancient distinction between church and state
had to be newly reaffirmed in a manner adapted to the American scene.
Calvinist theocracy, Anglican Erastianism, Gallican absolutism—all were
vitiated by the same taint: they violated in one way or another this
traditional distinction.

The dualism of mankind's two hierarchically ordered forms of social
life had been Christianity's cardinal contribution to the Western political
tradition, as everyone knows who has looked into the monumental work
of the two Carlyles, Medieval Political Thought in the West. Perhaps
equally with the very idea of law itself it had been the most fecund
force for freedom in society. The distinction had always been difficult
to maintain in practice, even when it was affirmed in theory. But when
it was formally denied the result was an infringement of man's freedom
of religious faith or of his freedom as a citizen—an infringement of
either or both. Hence the generalized American impulse toward freedom
inevitably led to a new and specially emphatic affirmation of the traditional
distinction.

The distinction lay readily within the reach of the early American
lawyers and statesmen; for it was part of the English legal heritage,
part of the patrimony of the common law. One can see it appearing,

[p. 65]

for instance, in Madison's famous Memorial and Remonstrance, where
it is interpreted in a manner conformable to the anti-ecclesiasticism
which he had in common with Jefferson. But the interesting figure here
is again Roger Williams. Reading him, the Catholic theorist is inclined
to agree with those "juditious persons" whose verdict was
reluctantly and belatedly recorded by Cotton Mather. They "judged
him," said Mather, "to have the root of the matter in him."

In the present question the root of the matter is this distinction
of the spiritual and temporal orders and their respective jurisdictions.
One is tempted to think that he got hold of this root at least partly
because of his early acquaintance with English law. He was for a time
secretary to the great Sir Edward Coke and it is at least not unlikely
that he continued his legal interests at Cambridge. In any event, this
distinction was a key principle with Williams. He had his own special
understanding of it, but at least he understood it. What is more, in
1636 he felt in his own flesh, so to speak, the effects of its violations
in the Massachusetts colony. Of his banishment from Massachusetts in
that year he later wrote: "Secondly, if he (John Cotton) means
this civil act of banishing, why should he call a civil sentence from
a civil state, within a few weeks execution in so sharp a time of New
England's cold, why should he call this a banishment from the churches
except he silently confess that the frame or constitution of their churches
is implicitly national (which yet they profess against)? For otherwise,
why was I not yet permitted to live in the world or commonweal except
for this reason, that the commonweal and church is yet but one, and
he that is banished from the one must necessarily be banished from the
other also?" This was his constant accusation against the New England
Way. He says on another occasion: "First, it will appear that in
spiritual things they make the garden and the wilderness (as I often
have intimated), I say, the garden and the wilderness, the church and
the world are all one." The same charge is lodged against "holy
men, emperors

[p. 66]

and bishops" throughout history, that "they made the garden
of the church and the field of the world to be all one. . . ."
However erroneously Williams may have understood the "garden,"
the church, as having no relation whatsoever to the "wilderness,"
at least he knew that church and civil society are not one but two.
To make them "all one" is to violate the nature of the church
and also the nature of civil society, as this latter had been understood
in the liberal Christian political tradition.

As has been said, Roger Williams was not a Father of the Federal Constitution.
He is adduced here only as a witness, in his own way, to the genuine
Western tradition of politics. The point is that the distinction of
church and state, one of the central assertions of this tradition, found
its way into the Constitution. There it received a special embodiment,
adapted to the peculiar genius of American government and to the concrete
conditions of American society.

How this happened need not concern us here. Certainly it was in part
because the artisans of the Constitution had a clear grasp of the distinction
between state and society, which had been the historical product of
the distinction between church and state, inasmuch as the latter distinction
asserted the existence of a whole wide area of human concerns which
were remote from the competence of government. Calhoun's "force
of circumstances" also had a great deal of influence; here again
it was a matter of the Fathers building better than they knew. Their
major concern was sharply to circumscribe the powers of government.
The area of state—that is, legal—concern was limited to the pursuit of
certain enumerated secular purposes (to say that the purposes are secular
is not to deny that many of them are also moral; so for instance the
establishment of justice and peace, the promotion of the general welfare,
etc.). Thus made autonomous in its own sphere, government was denied
all competence in the field of religion. In this field freedom was to
be the rule and method; government was powerless to legislate respecting
an establishment of religion and likewise

[p. 67]

powerless to prohibit the free exercise of religion. Its single office
was to take legal or judicial steps necessary on given occasions to
make effective the general guarantee of freedom.

The concrete applications of this, in itself quite simple, solution
have presented great historical and legal difficulties. This has been
inevitable, given the intimacy with which religion is woven into the
whole social fabric, and given, too, the evolution of government from
John Adams' "plain, simple, intelligible thing, quite comprehensible
by common sense," to the enormously complicated and sprawling thing
which now organizes a great part of our lives, handles almost all education,
and much social welfare. In particular, we have not yet found an answer
to the question whether government can make effective the primary intention
of the First Amendment, the guarantee of freedom of religion, simply
by attempting to make more and more "impregnable" what is
called, in Rogers Williams' fateful metaphor, the "wall of separation"
between church and state. However, what concerns us here is the root
of the matter, the fact that the American Constitution embodies in a
special way the traditional principle of the distinction between church
and state.

For Catholics this fact is of great and providential importance for
one major reason. It serves sharply to set off our constitutional system
from the system against which the Church waged its long-drawnout fight
in the nineteenth century, namely, Jacobinism, or (in Carlton Hayes's
term) sectarian Liberalism, or (in the more definitive term used today)
totalitarian democracy.

It is now coming to be recognized that the Church opposed the "separation
of church and state" of the sectarian Liberals because in theory
and in fact it did not mean separation at all but perhaps the most drastic
unification of church and state which history had known. The Jacobin
"free state" was as regalist as the ancien regime, and even
more so. Writing as a historian, de Tocqueville long ago made this plain.
And the detailed descriptions which Leo XIII, writing as a theologian
and political moralist, gave of the Church's

[p. 68]

"enemy" make the fact even more plain. Within this "free
state" the so-called "free church" was subject to a political
control more complete than the Tudor or Stuart or Bourbon monarchies
dreamed of. The evidence stretches all the way from the Civil Constitution
of the Clergy in 1790 to the Law of Separation in 1905.

In the system sponsored by the sectarian Liberals, as has been well
said, "The state pretends to ignore the Church; in reality it never
took more cognizance of her." In the law of 1905, the climactic
development, the Church was arrogantly assigned a juridical statute
articulated in forty-four articles, whereby almost every aspect of her
organization and action was minutely regulated. Moreover, this was done
on principle—the principle of the primacy of the political, the principle
of "everything within the state, nothing above the state."
This was the cardinal thesis of sectarian Liberalism, whose full historical
development is now being witnessed in the totalitarian "people's
democracies" behind the Iron Curtain. As the Syllabus and its explicatory
documents—as well as the multitudinous writings of Leo XIII—make entirely
clear, it was this thesis of the juridical omnipotence and omnicompetence
of the state which was the central object of the Church's condemnation
of the Jacobin development. It was because freedom of religion and separation
of church and state were predicated on this thesis that the Church refused
to accept them as a thesis.

This thesis was utterly rejected by the founders of the American Republic.
The rejection was as warranted as it was providential, because this
thesis is not only theologically heterodox, as denying the reality of
the Church; it is also politically revolutionary, as denying the substance
of the liberal tradition. The American thesis is that government is
not juridically omnipotent. Its powers are limited, and one of the principles
of limitation is the distinction between state and church, in their
purposes, methods, and manner of organization. The Jacobin thesis was
basically philosophical; it derived from a

[p. 69]

sectarian concept of the autonomy of reason. It was also theological,
as implying a sectarian concept of religion and of the church. In contrast,
the American thesis is simply political. It asserts the theory of a
free people under a limited government, a theory that is recognizably
part of the Christian political tradition, and altogether defensible
in the manner of its realization under American circumstances.

It may indeed be said that the American constitutional system exaggerates
the distinction between church and state by its self-denying ordinances.
However, it must also be said that government rarely appears to better
advantage than when passing self-denying ordinances. In any event, it
is one thing to exaggerate a traditional distinction along the lines
of its inherent tendency; it is quite another thing to abolish the distinction.
In the latter case the result is a vicious monistic society; in the
former, a faultily dualistic one. The vice in the Jacobin system could
only be condemned by the Church, not in any way condoned. The fault
in the American system can be recognized as such, without condemnation.
There are times and circumstances, Chesterton jocosely said, when it
is necessary to exaggerate in order to tell the truth. There are also
times and circumstances, one may more seriously say, when some exaggeration
of the restrictions placed on government is necessary in order to insure
freedom. These circumstances of social necessity were and are present
in America.

THE FREEDOM OF THE CHURCH

Here then is the second leading reason why the American solution to
the problem of religious pluralism commends itself to the Catholic conscience.
In the discourse already cited Pius XII states, as the two cardinal
purposes of a Concordat, first, "to assure to the Church a stable
condition of right and of fact within society," and second, "to

[p. 70]

guarantee to her a full independence in the fulfillment of her divine
mission." It may be maintained that both of these objectives are
sufficiently achieved by the religious provisions of the First Amendment.
It is obvious that the Church in America enjoys a stable condition in
fact. That her status at law is not less stable ought to be hardly less
obvious, if only one has clearly in mind the peculiarity of the American
affirmation of the distinction between church and state. This affirmation
is made through the imposition of limits on government, which is confined
to its own proper ends, those of temporal society. In contrast to the
Jacobin system in all its forms, the American Constitution does not
presume to define the Church or in any way to supervise her exercise
of authority in pursuit of her own distinct ends. The Church is entirely
free to define herself and to exercise to the full her spiritual jurisdiction.
It is legally recognized that there is an area which lies outside the
competence of government. This area coincides with the area of the divine
mission of the Church, and within this area the Church is fully independent,
immune from interference by political authority.

The juridical result of the American limitation of governmental powers
is the guarantee to the Church of a stable condition of freedom as a
matter of law and right. It should be added that this guarantee is made
not only to the individual Catholic but to the Church as an organized
society with its own law and jurisdiction. The reason is that the American
state is not erected on the principle of the unity and indivisibility
of sovereignty which was the post-Renaissance European development.
Nowhere in the American structure is there accumulated the plenitude
of legal sovereignty possessed in England by the Queen in Parliament.
In fact, the term "legal sovereignty" makes no sense in America,
where sovereignty (if the alien term must be used) is purely political.
The United States has a government, or better, a structure of governments
operating on different levels. The American state has no sovereignty
in the classic Continental sense. Within society, as distinct from the
state, there is room

[p. 71]

for the independent exercise of an authority which is not that of the
state. This principle has more than once been affirmed by American courts,
most recently by the Supreme Court in the Kedroff case. The validity
of this principle strengthens the stability of the Church's condition
at law.

Perhaps the root of the matter, as hitherto described, might be seen
summed up in an incident of early American and Church history. This
is Leo Pfeffer's account of it in his book, Church, State and Freedom:
(Boston: Beacon Press, 1953.)

In 1783 the papal nuncio at Paris addressed a note to Benjamin Franklin
suggesting that, since it was no longer possible to maintain the previous
status whereunder American Catholics were subject to the Vicar Apostolic
at London, the Holy See proposed to Congress that a Catholic bishopric
be established in one of the American cities. Franklin transmitted
the note to the [Continental] Congress, which directed Franklin to
notify the nuncio that "the subject of his application to Doctor
Franklin being purely spiritual, it is without the jurisdiction and
powers of Congress, who have no authority to permit or refuse it,
these powers being reserved to the several states individually."
(Not many years later the several states would likewise declare themselves
to "have no authority to permit or refuse" such a purely
spiritual exercise of ecclesiastical jurisdiction.)

The good nuncio must have been mightily surprised on receiving this
communication. Not for centuries had the Holy See been free to erect
a bishopric and appoint a bishop without the prior consent of government,
without prior exercise of the governmental right of presentation, without
all the legal formalities with which Catholic states had fettered the
freedom of the Church. In the United States the freedom of the Church
was completely unfettered; she could organize herself with the full
independence which is her native right. This, it may be confidently
said, was a turning point in the long and complicated history of church-state
relations.

[p. 72]

THE AMERICAN EXPERIENCE

One final ground for affirming the validity of the religion clauses
of the First Amendment as good law must be briefly touched on. Holmes's
famous dictum, "The life of the law is not logic but experience,"
has more truth in it than many other Holmesian dicta. When a law ceases
to be supported by a continued experience of its goodness, it becomes
a dead letter, an empty legal form. Although pure pragmatism cannot
be made the philosophy of law, nonetheless the value of any given law
is importantly pragmatic. The First Amendment surely passes this test
of good law. In support of it one can adduce an American experience.
One might well call it the American experience in the sense that it
has been central in American history and also unique in the history
of the world.

This experience has three facets, all interrelated.

First, America has proved by experience that political unity and stability
are possible without uniformity of religious belief and practice, without
the necessity of any governmental restrictions on any religion. Before
the days of the Federal Republic some men had tried to believe that
this could be so; thus for instance the politiques in France, in their
attack upon the classic Gallican and absolutist thesis, "One law,
one faith, one king." But this thesis, and its equivalents, had
not been disproved. This event was accomplished in the United States
by an argument from experience. For a century and a half the United
States has displayed to the world the fact that political unity and
stability are not necessarily dependent on the common sharing of one
religious faith.

The reach of this demonstration is, of course, limited. Granted that
the unity of the commonwealth can be achieved in the absence of a consensus
with regard to the theological truths that govern the total life and
destiny of man, it does not follow that this necessary civic unity can
endure in the absence of a consensus more narrow in its scope, operative
on the level of political life, with regard to

[p. 73]

the rational truths and moral precepts that govern the structure of
the constitutional state, specify the substance of the common weal,
and determine the ends of public policy. Nor has experience yet shown
how, if at all, this moral consensus can survive amid all the ruptures
of religious division, whose tendency is inherently disintegrative of
all consensus and community. But this is a further question, for the
future to answer. I shall have occasion in later chapters to discuss
this whole question of the American consensus and its present condition
among us.

The second American experience was that stable political unity, which
means perduring agreement on the common good of man at the level of
performance, can be strengthened by the exclusion of religious differences
from the area of concern allotted to government. In America we have
been rescued from the disaster of ideological parties. They are a disaster
because, where such parties exist, power becomes a special kind of prize.
The struggle for power is a partisan struggle for the means whereby
the opposing ideology may be destroyed. It has been remarked that only
in a disintegrating society does politics become a controversy over
ends; it should be simply a controversy over means to ends already agreed
on with sufficient unanimity. The Latin countries of Europe have displayed
this spectacle of ideological politics, a struggle between a host of
"isms," all of which pretend to a final view of man and society,
with the twin results of governmental paralysis and seemingly irremediable
social division. In contrast, the American experience of political unity
has been striking. (Even the Civil War does not refute this view; it
was not an ideological conflict but simply, in the more descriptive
Southern phrase, a war between the states, a conflict of interests.)
To this experience of political unity the First Amendment has made a
unique contribution; and in doing so it has qualified as good law.

The third and most striking aspect of the American experience consists
in the fact that religion itself, and not least the Catholic Church,
has benefited by our free institutions, by the maintenance,

[p. 74]

even in exaggerated form, of the distinction between church and state.
Within the same span of history the experience of the Church elsewhere,
especially in the Latin lands, has been alternately an experience of
privilege or persecution. The reason lay in a particular concept of
government. It was alternatively the determination of government to
ally itself either with the purposes of the Church or with the purposes
of some sect or other (sectarian Liberalism, for instance) which made
a similar, however erroneous, claim to possess the full and final truth.
The dominant conviction, whose origins are really in pagan antiquity,
was that government should represent transcendent truth and by its legal
power make this truth prevail. However, in the absence of social agreement
as to what the truth really was, the result was to involve the Catholic
truth in the vicissitudes of power. It would be difficult to say which
experience, privilege or persecution, proved in the end to be the more
damaging or gainful to the Church.

In contrast, American government has not undertaken to represent transcendental
truth in any of the versions of it current in American society. It does
indeed represent the commonly shared moral values of the community.
It also represents the supreme religious truth expressed in the motto
on American coins: "In God we trust." The motto expresses
the two truths without which, as the Letter to the Hebrews says, "nobody
reaches God's presence," namely, "to believe that God exists
and that he rewards those who try to find him" (Hebrews 11: 6).
For the rest, government represents the truth of society as it actually
is; and the truth is that American society is religiously pluralist.
The truth is lamentable; it is nonetheless true. Many of the beliefs
entertained within society ought not to be believed, because they are
false; nonetheless men believe them. It is not the function of government
to resolve the dispute between conflicting truths, all of which claim
the final validity of transcendence. As representative of a pluralist
society, wherein religious faith is—as it

[p. 75]

must be—free, government undertakes to represent the principle of freedom.

In taking this course American government would seem to be on the course
set by Pius XII for the religiously pluralist international community,
of which America offers, as it were, a pattern in miniature. In the
discourse already cited he distinguishes two questions: "The first
concerns the objective truth and the obligation of conscience toward
that which is objectively true and good." This question, he goes
on, "can hardly be made the object of discussion and ruling among
the individual states and their communities, especially in the case
of a plurality of religious confessions within the same community."
In other words, government is not a judge of religious truth; parliaments
are not to play the theologian. In accord with this principle American
government does not presume to discuss, much less rule upon, the objective
truth or falsity of the various religious confessions within society.
It puts to itself only Pius XII's second question, which concerns "the
practical attitude" of government in the face of religious pluralism.
It answers this question by asserting that in the given circumstances
it has neither the mandate nor the duty nor the right to legislate either
in favor of or against any of the religious confessions existent in
American society, which in its totality government must represent. It
will therefore only represent their freedom, in the face of civil law,
to exist, since they do in fact exist. This is precisely the practical
attitude which Pius XII recognizes as right, as the proper moral and
political course.

In consequence of this American concept of the representative function
of government the experience of the Church in America, like the general
American experience itself, has proved to be satisfactory when one scans
it from the viewpoint of the value upon which the Church sets primary
importance, namely, her freedom in the fulfillment of her spiritual
mission to communicate divine truth and grace to the souls of men, and
her equally spiritual mission of social justice and peace. The Church
has not enjoyed a privileged

[p. 76]

status in public life; at the same time she has not had to pay the
price of this privilege. A whole book could be written on the price
of such legal privilege. Another book could be written on the value
of freedom without privilege. In fact, both books have been written,
on the metaphorical pages of history. And looking over his own continually
unrolling historical manuscript the American Catholic is inclined to
conclude that his is a valid book.

It does not develop a doctrinal thesis, but it does prove a practical
point. The point is that the goodness of the First Amendment as constitutional
law is manifested not only by political but also by religious experience.
By and large (for no historical record is without blots) it has been
good for religion, for Catholicism, to have had simply the right of
freedom. This right is at the same time the highest of privileges, and
it too has its price. But the price has not been envy and enmity, the
coinage in which the Church paid for privilege. It has only been the
price of sacrifice, labor, added responsibilities; and these things
are redemptive.

CONCLUSION

In the final analysis any validation of the First Amendment as good
law—no matter by whom undertaken, be he Protestant, Catholic, Jew, or
secularist—must make appeal to the three arguments developed above—the
demands of social necessity, the rightfulness within our own circumstances
of the American manner of asserting the distinction between church and
state, and the lessons of experience. Perhaps the last argument is the
most powerful. It is also, I may add, the argument which best harmonizes
with the general tone which arguments for our institutions are accustomed
to adopt.

In a curiously controlling way this tone was set by the Federalist
papers. These essays were not political treatises after the manner of
Hobbes and Hegel, Rousseau and Comte, or even John Locke. It has been
remarked that in America no treatises of this kind have

[p. 77]

been produced; and it is probably just as well. The authors of the
Federalist papers were not engaged in broaching a political theory universal
in scope and application, a plan for an Ideal Republic of Truth and
Virtue. They were arguing for a particular Constitution, a special kind
of governmental structure, a limited ensemble of concrete laws, all
designed for application within a given society. They were in the tradition
of the Revolutionary thinkers who led a colonial rebellion, not in the
name of a set of flamboyant abstractions, but in the name of the sober
laws of the British Constitution which they felt were being violated
in their regard. It has been pointed out that the only real slogan the
Revolution produced was: "No taxation without representation."
It has not the ring of a trumpet; its sound is more like the dry rustle
of a lawyer's sheaf of parchment.

It is in the tone of this tradition of American political writing that
one should argue for the First Amendment. The arguments will tend to
be convincing in proportion as their key of utterance approaches a dry
rustle and not a wild ring. The arguments here presented are surely
dry enough. Perhaps they will not satisfy the American doctrinaire,
the theologizer. But they do, I think, show that the first of our prejudices
is "not a prejudice destitute of reason, but involving in it profound
and extensive wisdom." This is all that need be shown; it is likewise
all that can be shown.

The Catholic Church in America is committed to this prejudice by the
totality of her experience in American history. As far as I know, the
only ones who doubt the firmness, the depth, the principled nature of
this commitment are not Catholics. They speak without knowledge and
without authority; and the credence they command has its origins in
emotion. If perhaps what troubles them is the fact that the commitment
is limited, in the sense that it is not to the truth and sanctity of
a dogma but only to the rationality and goodness of a law, they might
recall the story of Pompey. After the capture of Jerusalem in 63 B.C.
he went to the Temple and forced his way into the Holy of Holies. To
his intense

[p. 78]

astonishment he found it empty. He should not have been astonished;
for the emptiness was the symbol of the absence of idolatry. It symbolized
the essential truth of Judaism, that One is the Lord. Professor Boorstin,
who recounts the tale, adds: "Perhaps the same surprise awaits
the student of American culture [or, I add, the American Constitution]
if he finally manages to penetrate the arcanum of our belief. And for
a similar reason. Far from being disappointed, we should be inspired
that in an era of idolatry, when so many nations have filled their sanctuaries
with ideological idols, we have had the courage to refuse to do so."

The American Catholic is on good ground when he refuses to make an
ideological idol out of religious freedom and separation of church and
state, when he refuses to "believe" in them as articles of
faith. He takes the highest ground available in this matter of the relations
between religion and government when he asserts that his commitment
to the religion clauses of the Constitution is a moral commitment to
them as articles of peace in a pluralist society.